FYV v NSW Trustee and Guardian

The Tribunal's role in these proceedings and possible outcomes

1. Section 63(1) of the ADR Act prescribes the role of the Tribunal in determining an application for administrative review as being: "… to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law."
2. Section 63(2) allows the Tribunal, for the purpose of making its decision, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
3. The effect of those two provisions is often characterised as requiring the Tribunal to "stand in the shoes" of the administrator who made the decision. I must conduct this review without any presumption as to the correctness of the decision and I am required to decide what the correct and preferable decision is having regard to the material that is before me at this hearing. That may include material which postdates the making of the decision which is under review: Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
4. Section 63(3) of the ADR Act sets out the range of possible outcomes of an administrative review such as the present one, as follows: In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Documentary and related material and submissions considered

1. I considered the following documentation and related material and submissions lodged by or on behalf of the parties, omitting administrative correspondence with the Registry, listing and interlocutory documentation: 1. On behalf of the Applicant, FYV: the Application with attached documentation (33 pages), further submissions in reply received 1 November 2023; Schedule of Documents received 1 November 2023; documentation bundle received on 24 November 2023 including letters from Seniors First and statement of Elda Urbani; further documents received 24 November 2023 including letter from Seniors First of 14 November 2023, further documents covered by schedule lodged on 29 November 2023; transcripts of videos of discussions with Giulia and attached video recordings received 29 November 2023. 2. On behalf of the First Respondent, NSW Trustee: submissions dated 14 November 2023 and a bundle of documents produced under section 58 of ADR Act (section 58 bundle). 3. On behalf of the Second Respondent, GBZ: submissions received 24 November 2023. 4. On behalf of the Fourth Respondent, GCH: submissions received 28 November 2023.
2. At the hearing I heard oral submissions from each of the parties who participated, namely FYV, NSW Trustee, GCH, GBZ and GCA

The recorded video evidence

1. I have also viewed 3 videos which together with a transcript in English were lodged at the Registry by FYV on 29 November 2023; that is, two days prior to the hearing. I understand that that material was served on the other parties.
2. The 3 videos purport to be a record of FYV's conversations with Giulia, conducted in the Italian language at the care facility where she lives, which occurred on 16 October 2022 (Video 1) and 31 July 2022 (Videos 2 and 3). The transcript in English was made on 29 November 2023 by a NAATI-certified translator. There was no objection to my consideration of these videos or to the translation.
3. At the hearing I indicated that I had not had the opportunity to view the videos but would do so before reaching a decision. I indicated that I proposed to reject FYV's suggestion that the videos be viewed at the hearing, because that would ensure that the hearing could be completed in the half-day allowed, which would clearly be in Giulia's best interests.
4. There was no objection to that course of action or more generally to any aspect of the videos or the transcript or to their forming part of the material before me.
5. Notwithstanding that lack of objection, I limit the weight which I give to the words spoken as recorded on the video, insofar as they purport to be evidence of Giulia's current views, because the discussion with Giulia shown in the videos occurred some 16 months or more prior to this hearing and because the other parties have had only a limited opportunity to consider this material.
6. I do however give substantial weight to the visual content of the videos insofar as it constitutes evidence of Giulia's general demeanour, attention span, ability to converse and to provide relevant answers to questions or suggested topics on the dates of the conversations recorded. Giulia presents as being in good overall health and appears well-dressed and groomed, she is alert, attuned to her surroundings and attentive to the conversation and to the particular questions asked; she addresses each question so as to indicate appropriate comprehension by her of the question; and she provides her answers relevantly and without substantial hesitation. Her views appear to be clear and to be firmly held.
7. I do give some weight to the actual content of the conversation because Giulia's answers appear to be clear and considered and FYV's questions to her do not appear to be based on mis-description, innuendo or exaggeration (what might be thought of as "gilding the lily") Nor does he overtly suggest to Giulia the answers which he expect to receive: he does not "lead" her.
8. Even subject to the limitations noted above, I assess the videos as clearly and sufficiently demonstrating that on the relevant dates of the discussions Giulia held a strong view that the Croydon property should not be sold prior to her death because it is a family asset and had been her home and that of her husband. She is astute enough to suggest that the house be rented "if we need the money" and she occasionally uses strong phrases, such as: "No one touches my house. They should do me no wrong on this"
9. Subject to the limitations noted above, I accept the videos as persuasive evidence of Giulia's views on 31 July and 16 October 2022. There was nothing before me to indicate that her views have changed.

The parties' respective cases

1. The Applicant, FYV's case is that NSW Trustee's decision which is under review is not the correct and preferable decision; that is, that the Croydon property should not be sold, because that would not be in the best interests of his aunt, Giulia.
2. FYV contends that the decision under review should be set aside and a decision made by this Tribunal which sanctions a reverse-mortgage arrangement as proposed by him, or something similar. He relies on the videos as to his aunt's views and apparent capacity to have an opinion on the matter and he relies on the correspondence from reverse-mortgage practitioners to illustrate the method of establishment and the benefits of a reverse mortgage arrangement in lieu of a sale. FYV contends that he has approached the matter by asking what his aunt Giulia wished to be done with the property, whereas his cousin GBZ appeared to focus on how their aunt's estate could be administered with benefit to others.
3. FYV's case is supported by GCH. Her submissions are strongly critical of NSW Trustee's decision to sell the Croydon property and of the case put by and the actions of GBZ and GCA in support of NSW Trustee's decision. She contends that the Trustee's decision could not have resulted from any thorough or proper consideration of her aunt's best interests and that the decision is not in Giulia's best interests now. She invites me to conclude that it may however be favourable to the interests of her cousins GBZ and GCA.
4. GCA supports of a sale of the Croydon property. He contends that 2 years ago the parties appeared to be in consensus that the property should be sold and that he is content to leave to NSW Trustee as appointed manager of the estate the decision as to whether it should be sold.
5. GBZ's case is that NSW Trustee's proposal for sale is consistent with previous financial reports, which she had sought during her appointment as Giulia's financial manager. GBZ is highly critical of her cousin FYV for his persistence in believing that Giulia can make decisions and is refusal to believe that Giulia has dementia. As I understood GBZ's submissions, she contends that because Giulia has been found to have dementia, her views as to the sale of the Croydon property should be given little weight.

The issues for determination

1. The broad issue here clearly is whether the decision under review of the NSW Trustee to sell the Croydon property is the correct and preferable decision.
2. That in turn involves a consideration of whether in making the decision to sell the Croydon property the Trustee acted in compliance with the principles in section 39 of the NSW Trustee and Guardian Act 2009 (NSWT&G Act). I proceed to consider that issue.

1. Preservation of the estate and the section 39 principles
2. In the NSW Court of Appeal decision in Protective Commissioner v D & Others [2004] NSWCA 216 (D's Case), at [173], Mc Coll JA, with whom Mason P and Giles JA agreed, observed that in managing a protected estate, (t)he manager exercises a protective function, protective in the sense that the manager's task is to ensure the estate is managed in a manner to secure the protected person's estate for that person's continued maintenance. In this respect the (Protected Estates Act 1983) and its predecessors reflected the "parental and protective" jurisdiction historically exercised by the Crown both in exercise of its prerogative and pursuant to (relevant statutes regarding protected persons).
3. However, 5 years after McColl JA's learned and detailed analysis in that case, the legislation governing protected estates in New South Wales was substantially reformed by the repeal of the Protected Estates Act and the enactment of the NSWT&G Act 2009. A new corporate body, NSW Trustee and Guardian, was brought into existence by section 5 of that Act.
4. Chapter 4 of that Act is entitled "Management functions relating to persons incapable of managing their affairs" and relevantly, within Chapter 4, section 38 defines "protected person" to mean, in effect a person for whom a financial management order has been made under the Guardianship Act and section 39 contains 7 principles relating to protected persons. Those principles are required to be applied by anyone exercising functions under Chapter 4 of the Act with respect to protected persons or patients and are usually referred to as "the section 39 principles". They are the same as the first 7 of the 8 principles set out in section 4 of the Guardianship Act, which apply to anyone exercising functions under that Act for people with disabilities.
5. Section 39 is in these terms. 39 GENERAL PRINCIPLES APPLICABLE TO CHAPTER It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles-- (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation.
6. The enactment of section 39 has a significant impact on the application of the principles which govern decisions in the course of management of estates of protected persons. That is so particularly in relation to any continued application of older principles of "maintenance" or "protection" of the capital of the estate as enunciated and applied in D's Case. Those principles of course retain their importance in the law of trusts generally and the administration of estates, but in respect of the administration of estates of protected persons, from the commencement of the NSWT&G Act on 1 July 2009, the propriety and adequacy of financial management decisions for protected persons must now be assessed by reference to the section 39 principles.
7. A recognised authority on the application of the section 39 principles is WL v NSW Trustee and Guardian [2011] NSWADTAP 22 (WL); a decision of the Appeal Panel of the former Administrative Decisions Tribunal in which a Deputy President of that Tribunal (and subsequently of this Tribunal), Magistrate Nancy Hennessy, presided. The decision in WL, in particular at [75]-[77], confirms the following aspects of the application of the section 4 principles which are clearly applicable to the application of the (almost identical) section 39 principles: 1. a decision-maker is bound to observe any of the principles in the section which is relevant; 2. the decision-maker may demonstrate that he or she has done so either by referring to the particular principles expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed; 3. the principles are not expressed in absolute terms. Phrases such as "as little as possible" and "as far as possible" make it clear that where a discretion exists the decision-maker must make a particular decision; and 4. the observance of a particular section 4 principle (and by analogy any section 39 principle) requires only that the decision-maker "observe" the principles.
8. As I observed in DYH v Public Guardian [2021] NSWCATAD 136, (DYH) at [82], the decision in WL at [76] supports the proposition that observance of any one section 4 principle (and by any one section 39 principle) does not inevitably lead to a particular decision being made in respect of a protected person (or, by logical extension) to it being the correct and preferable decision.
9. But there is one principle in sections 39 and 4 which must in every case be given paramount consideration. That is the one set out in paragraph (a) of the sections: the welfare and interests of the protected person. As I observed in DYH at [84], in relation to section 4,: …any decision reached on the basis of a consideration of the … principles must pass through the "final filter" of paragraph (a). It cannot be the correct decision unless it is made as the result of the decision-maker having given paramount consideration to the welfare and interests of the person with a disability.
10. The expression "welfare and interests" is not defined in the Guardianship Act or the NSWT&G Act. But it is clear, as the Appeal Panel of this Tribunal confirmed recently YFM v Public Guardian [2023] NSWCATAP 266 (that being a matter involving section 4 of the Guardianship Act), that the phrase cannot be read as requiring the Tribunal to adopt a protectionist approach. The Tribunal observed, at [57] as follows: The expression "welfare and interests" … is an expression capable of broad meaning. It was for the Tribunal to decide the factors which were relevant to an assessment of the Mother's interests and welfare in the circumstances of the facts of this case. Section 4(a) of the Guardianship Act could not be read, as the appellant apparently suggests, as requiring the Tribunal to adopt a protectionist approach.
11. NSW Trustee's case on this central issue, as expressed in his written submissions at [22] is that a reverse mortgage as proposed by the Applicant will unnecessarily deplete the capital of the estate and incur significant interest, whereas a sale of the Croydon property will ensure that her financial needs are met without unnecessarily depleting the estate. It is readily apparent that NSW Trustee's position is based to a significant extent upon the principle of "protection" or "maintenance" of the capital of Giulia's estate.
12. But, as demonstrated above, in order for any decision about Giulia's estate to be the correct one it must be demonstrated to have been made: 1. in observance of each of the relevant section 39 principles; and 2. as a result of giving paramount consideration to the and interests of the protected person.
13. Section 39 does not include the terms "protection" or "maintenance", other than in its reference to maintenance of family relationships.
14. Even though the principle of protection or maintenance of capital continues to have some relevance to the process of making decisions involving the sale of the property of protected persons, that principle must now give way to an obligation not to sanction the sale unless it will also promote the welfare and interests of the protected person and satisfy such of the other section 39 principles as are relevant.

2. Findings: Effect upon Julia of a sale of the property
3. I make the following findings against the background of the significant conclusions which were drawn as to Giulia's diagnosis, treatment and prognosis by the Guardianship Division Panel in its hearing on 12 January 2023. That was a hearing to consider GBZ's application for a review of Giulia's power of attorney. GBZ had made the application with a view to removing her cousin FYV as an attorney. The Panel's findings are the more authoritative because the Professional Member of that Panel is Staff Specialist in Geriatric Medicine at two of Sydney's leading hospitals.
4. The Panel found that Giulia continued to be incapable of managing her affairs. Significantly however it also found that she remained capable of expressing opinions; that is, her views. The Tribunal concluded in its (unreported) reasons for decision of 12 January 2023: [17] It was common ground…that (Giulia) was not able to make significant financial decisions and this was consistent with her presentation during the hearing when she was unable to answer basic questions about her affairs.(FYV) submitted that his aunt is able to express opinions, however, and this was consistent with our observations. She stated clearly several times that she does not wish her house to be sold… [34]…It is important that consideration is given to (Giulia's) clearly expressed view that she does not want her house to be sold.
5. I have also taken into account all the material before me, including the video recordings of Giulia's views as discussed above.
6. I cannot be satisfied that Giulia's welfare and interests will be promoted by the sale of the Croydon property, because if a decision to do so is made: 1. there is a clear prospect that Giulia will be bitterly disappointed if not devastated by that decision to such an extent that the sale could not be consistent with her wellbeing: see section 39(a). In reaching that conclusion I rely on the evidence available and in particular to the sworn statement of Giulia's niece who resides in France, Ms Elda Urbani, there having been no objection to that statement. There is no suggestion that the more deceptive course of just not informing her of a sale will be pursued; 2. there must be some prospect of a corresponding deterioration or acceleration of the deterioration of her emotional state, her mental health and perhaps her cognitive ability: see section 39(a). 3. her freedom of action and particularly freedom of decision will have been interfered with in a substantial way: see section 39(b); 4. such a sale is clearly contrary to her views, as made apparent in the video evidence discussed above: see section 39(d); 5. although I accept that the relationship between the two opposed 'camps' of her nephews and nieces is a fractious one, Giulia's own family relationships, that is, the relationships she wishes to have and depends upon with members of her family including of course each of her nieces and nephews, will almost certainly be damaged by the sale of her former home: see section 39(e); and 6. such a sale would be at best inconsistent with her cultural environment, which is reflected by an attachment to the home which has been owned and maintained for many years and to her family including her nephews and nieces: see section 39(e).

Conclusions

1. The conclusion based on the particular facts of this case must be that a sale of the Croydon property would be inconsistent with many of the section 39 principles and, as a paramount consideration, would cause some prejudice to Giulia's welfare and interests.
2. It would not be consistent with section 39.
3. That being so, I am unable to conclude that the decision of the NSW Trustee which is under review is the correct and preferable decision.

Appropriate orders

1. I have power under section 63(3)(c) of the ADR Act to set the Chief Commissioner's decision aside and make a decision in substitution. But the Chief Commissioner and his staff, particularly his Financial Planning Unit, is better placed and more qualified than I am to quantify, assess and recommend a course of action consistent with my decision which best accords with Giulia's welfare and interests.
2. That leads to a conclusion that an order under section 63(3)(d) of the Act, to set aside the decision and to remit the matter for reconsideration by NSW Trustee, is more appropriate.
3. I accept there is a clear and pressing need for arrangements to be made satisfy or at least pay down the Refundable Accommodation Deposit (RAD) debt which the Trustee assesses at $550,000 and to pay or reduce the nursing home fees arrears of over $24,000. The Trustee is well placed to assess the best means of doing that.
4. For the avoidance of doubt, I confirm that the means of ensuring repayment of the RAD debt and nursing home arrears may involve the implementation of a reverse mortgage arrangement, but I make no finding that such any such arrangement (including any of the reverse mortgage proposals made by FYV) is the appropriate and preferable means by which Giulia's future accommodation and care can be secured. The means by which the clearance of those debts is achieved, so as to secure appropriate accommodation and care for Giulia, is clearly a matter which the Chief Commissioner through his staff is better placed to determine than is the Tribunal.
5. For those reasons I make orders under section 63(3)(d) of the ADR Act and recommendations to NSW Trustee and Guardian in the following terms.

Orders

1. The decision under review is set aside and the matter is remitted for reconsideration by NSW Trustee and Guardian in accordance with the recommendations made at the conclusion of the reasons for decision.

Recommendations to NSW Trustee and Guardian The Tribunal recommends that NSW Trustee reconsider the decision under review in light of the Tribunal's findings and conclusions, so as to determine a course of action other than sale of the subject person's Croydon property which if implemented will allow for early reduction or repayment in full of the subject person's Refundable Accommodation Deposit debt and nursing home fees debt and will otherwise secure the subject person's appropriate accommodation and care. The course of action so determined may or may not, at NSW Trustee's discretion, consist of or include the implementation of a reverse mortgage arrangement based on the value of the Croydon property.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 February 2024